Harford v The Nursing and Midwifery Council

The Appellant is a registered nurse. On 19 October 2012 a Conduct and Competence Committee of the Respondent (hereinafter referred to as “the Panel”) found that the Appellant’s fitness to practise was impaired on account of her misconduct. The Panel decided to impose a sanction; the sanction imposed was a conditions of practice order for a period of six months. As is her right, the Appellant appeals to this court against the finding that her fitness to practise was impaired by reason of misconduct and against the sanction imposed upon her.

The Respondent was established by Article 3 of the Nursing and Midwifery Order 2001. Part V of the Order is entitled “FITNESS TO PRACTISE”. Article 21 provides:-

“(1)

The Council shall –

a)

establish and keep under review the standards of conduct, performance and ethics expected of registrants…..; and

b)

establish and keep under review affective arrangements to protect the public from persons whose fitness to practise is impaired.”

Article 22 applies where any allegation is made against a registrant to the effect that his fitness to practise is impaired by reason of misconduct. Where such an allegation is made the Respondent is empowered to refer it to a practise committee.

Article 22(4) provides:-

Rules may provide that where a Practise Committee finds that a person has failed to comply with the standards mentioned in Article 21(1), such failure shall not be taken of itself to establish that his fitness to practise is impaired, but may be taken into account in any proceedings under this Order.”

Article 29 defines the powers of the Panel. In the event that a Panel concludes that a registrant’s fitness to practise is impaired on account of misconduct the Panel may take action in accordance with Article 29(4) or (5). They provide:-

“(4)

The Committee may –

a)

refer the matter to Screeners for mediation or itself undertake mediation, or

b)

decide that it is not appropriate to take any further action.

(5)

where a case does not fall within paragraph (4), the Committee shall –

a)

make an order directing the Registrar to strike the person concerned off the register (a) “striking-off order”);

b)

make an order directing the Registrar to suspend the registration of the person concerned for a specified period which will not exceed one year (a) “suspension order”);

c)

make an order imposing conditions with which the person concerned must comply for a specified period which will not exceed 3 years (a) “conditions practise order”); or

d)

caution the person concerned and make an order directing the Registrar to annotate the register accordingly for a specified period which shall not be less than one year and not be more than 5 years (a) caution order”)”

Under Article 38 of the Order an appeal from a decision of the Panel lies to this court. The court’s powers are defined by Article 38(3)(a) to (d) which is in the following terms:-

“(3)

The court …..may –

a)

dismiss the appeals;

b)

allow the appeal and quash the decision appealed against;

c)

substitute for the decision appealed against any other decision that the Practice Committee concerned or the Council, as the case may be, could have made; or

d)

remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court….

and may make such order as to costs …..as it,….as the case may be, thinks fit.”

In determining an appeal the court applies CPR 52.11. That provides:-

“1.

Every appeal will be limited to a review of the decision of the lower court unless –

(a)

a practice direction makes different provision for a particular category of appeal; or

(b)

the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

2.

Unless it orders otherwise the appeal court will not receive –

(a)

oral evidence: or

(b)

evidence which was not before the lower court.

3.

The appeal court will allow an appeal where the decision of the lower court was –

(a)

wrong; or

(b)

unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

4.

The appeal court may draw any inference of fact which it considers justified on the evidence.

5.

At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission.”

There are a plethora of decisions upon the approach which a judge should take when conducting an appeal from statutory health care regulators such as the Respondent or the General Medical Council. In Meadow v GMS [2007] QB 462 Auld LJ expressed himself thus:-

“On an appeal from a determination by the GMC…..it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors:

i)

The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;

ii)

The Tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides;

iii)

The questions of primary and secondary fact and the over-all value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.”

Both Mr Beeby for the Appellant and Mr Moloney for the Respondent commend that approach to me.

The Appellant began working in the health care sector in or about 1984. In 2005 she became a registered nurse. Immediately after qualification she worked in the haematology department of a hospital in Plymouth. Over the next four or five years she worked in a variety of capacities until she became the practice nurse in a practice based in Bristol and operated by a single doctor, Dr Sharples. The Appellant commenced that employment on 5 July 2010.

During the material time Dr Sharples employed a small number of persons. As I understand it each of the surgeries had a receptionist; Dr Sharples also employed the Appellant, a practice manager, Ms Rosemary Murton and a phlebotomist to whom I shall refer as A. A had been employed by Dr Sharples for over 10 years when the Appellant began her employment and she had qualified as a phlebotomist during that period.

In December 2010 the Appellant informed Ms Murton that she had received oral adverse comments from patients about A’s venipuncture skills. The two women discussed the way forward. It is common ground that no formal or written complaints were registered by any patient. Nonetheless during the ensuing months the Appellant received further oral complaints and she informed Ms Murton that complaints had been received.

On 26 May 2011 A was due an annual appraisal. Appraisals were normally attended by Dr Sharples and Ms Murton. It was agreed, however, that the Appellant would also attend the appraisal on this occasion. The appraisal did not take place. There is a dispute about the reasons why.

On the day upon which the appraisal should have taken place Ms Murton received a letter of complaint from a patient. The letter is dated 23 May 2011 and related to an incident which had occurred on 21 April 2011. In summary, the patient complained that A had taken 3 attempts to obtain blood from her before succeeding.

On 2 June 2011 a meeting took place at which Dr Sharples, Ms Murton, the Appellant and A attended. Ms Murton made contemporaneous notes of what transpired at the meeting. The Appellant outlined the substance of the adverse comments/complaints which she had received from patients. A expressed surprise and upset about the alleged complaints and responded, so far as she could, to what the Appellant had said about the nature of the complaints. Ms Murton’s note of the meeting ends as follows:-

“Action to be taken: RM [Ms Murton] to seek refresher course for A. She will then be assessed by MN [the Appellant] who will sit in on her phlebotomy sessions until MN is satisfied with her competency.

•

In the interim she will not take blood from anyone. She will focus on her Stop Smoking and summarising work. She will inform RM when she needs more work. RM has found no record of the venepuncture course in the personnel files but A had a copy in her PDP portfolio. RM will copy and let MN have details.

•

MN and CJS [Dr Sharples] to review the clinical protocols.

•

CJS will investigate the allegations pending feedback from RCN.”

It appears that the Appellant had sought to involve the Royal College of Nursing in what was occurring by this stage.

During the next week or so there were email exchanges between Ms Murton and the Appellant. On 16 June 2011 a meeting took place between Dr Sharples, Ms Murton and the Appellant. In a letter dated 20 June 2011 the doctor wrote “to confirm the summary of outcomes as agreed…” The substance of the letter is as follows:-

“Following RCN protocol, you collated a list of patients from whom A has taken blood. These patients have allegedly raised a range of concerns with you and this has prompted you to deem A unsafe to practice venepuncture. Rosie has only had one letter from a patient addressing this. It stated that A took 3 attempts to get an INR sample on one occasion and that A had suggested double appointments in future, where as you had achieved it in one attempt for the same patient. This is a patient with a complex medical history, requiring regular blood tests, who can be difficult to obtain blood from. I understand this patient has also been involved in securing your new flat recently.

•

To satisfy the RCN, I have agreed that A should attend a training course which you have booked for her. She has agreed to do this. Once I am satisfied she is competent, she will be allowed to take blood from patients again.

•

You will provide me with a list of these patients so that I can evaluate if further action is required. This is vital as I have a duty of care to my patients as their general practitioner.

•

In future, you will raise clinical governance concerns with me immediately. Your allegations have shocked and upset the whole practice.

•

I understand that you are not pursuing your claim that A allegedly assaulted you on June 9^th 2011. There were no witnesses.

•

Rosie will obtain copies A’s certificates and training courses to date for the personnel file.

I appreciate you have your RCN registration to protect, as I do with the GMC, but the affect on this small practice has been devastating. I would like to get things back to normal as quickly as possible and part of the healing process will be to know that these serious allegations were absolutely justified. I look forward to seeing your list by June 27 at the latest.”

As is clear from this letter there had been a significant breakdown in relations between the Appellant and A by the middle of June 2011 and possibly, too, between the Appellant on the one hand and Dr Sharples and Ms Murton on the other.

The Appellant did not provide a list of patients as requested by Dr Sharples; she did not reply to his letter of 20 June 2011. She does not suggest that she provided an explanation to him as to why it was that she did not provide the list.

On 28 June 2011 Dr Sharples wrote again to the Appellant. He began his letter by stating that he had not received a “list of allegations by the 27^th 2011 deadline.” He continued:-

“The NMC has advised me that it is vital you submit your list of allegations so that I can conduct a local investigation. If you fail to do so, I should report this issue to them. They also inform me that phlebotomists are not regulated by the RCN or NMC. They are regulated by the employer and, as long as I am satisfied that A is fit to practice venepuncture, she can. As it currently stands, I have no evidence to the contrary.”

As of the date of this letter the Appellant was absent from work on the ground of ill health. Dr Sharples inquired as to the state of the Appellant's health and then ended the letter:-

“I am sure, like me, you would prefer not to go through a disciplinary procedure but I do need to investigate the allegations you have made. I am taking this matter very seriously. Without that list, I have to assume your allegations against A are groundless unless you can prove otherwise. I really would like to discuss this before you go on leave. I therefore suggest we meet on Friday July 1^st, ….so that you can explain your reasons for withholding these names. Please bring a friend or colleague if you wish and confirm your attendance to Rosie Murton.”

The Appellant did not supply a list of names or, for that matter, a list of allegations. She provided no explanation to Dr Sharples. What she did was to resign from her employment.

The Appellant faced the following allegation:-

“That you, whilst employed as a Band 6 Practice Nurse by Sneyd Park Surgery, having raised concerns about colleague A’s practice as a phlebotomist between December 2010 to May 2011, did not cooperate with the local investigation conducted by your employer in that you:

1.

Did not provide to your employer the list of patients you alleged to have complained to you regarding colleague A as requested on or around 16 June 2011.

2.

Did not provide a list of patients you alleged to have complained regarding colleague A as requested in a letter from Dr Sharples to you on or around 28 June 2011.

3.

Your conduct at heads of Charge 1 and 2 above, was dishonest.

And in light of the above, your fitness to practise is impaired by reason of your misconduct.”

At the commencement of the hearing the Respondent decided not to pursue the allegation of dishonesty. For her part, the Appellant admitted that she had failed to provide a list of patients as particularised in paragraphs 1 and 2 of the charge but she denied that her failure amounted to misconduct and/or that her fitness to practise was impaired.

The Panel heard oral evidence from Ms Murton and the Appellant. Further, it was provided with the relevant documentary evidence. In her oral evidence the Appellant explained that she had taken the decision not to supply a list of patients’ names, as requested, because the patients had told her that they did not wish to make written complaints and she considered that to provide the list would be a breach of confidence. That explanation was not challenged in the sense that it was not suggested that the explanation was untrue.

There were significant conflicts in the evidence given by Ms Murton and the Appellant. For example, at one stage in her evidence Ms Murton suggested that the Appellant had been asked to provide not just a list of the names of patients who had complained but also a list of the substance of the complaints. The Appellant denied that any such request was made to her. Further, there was a significant debate about the circumstances which had led to the Appellant resigning. Her account was, in effect, that she had become the victim of bullying on the part of Dr Sharples and Ms Murton and that A had perpetrated an assault upon her; Ms Murton denied the bullying allegations and, in effect, denied that A had assaulted the Appellant.

The Panel did not hear evidence from Dr Sharples. He had been due to give evidence but the parties apparently agreed that there was no need for him to be called.

At the conclusion of the oral hearing the Panel announced its decision that the Appellant's fitness to practise was impaired on account of misconduct and it imposed the sanction to which I have referred. Reasons for the decisions were articulated at the same time. In a written notice of decision (hereinafter referred to as “the decision letter”) dated 24 October 2012 the Panel provided a written record of its decisions and reasoning.

The Panel correctly considered the issues of misconduct and fitness to practise sequentially. Further, they appear to have considered the issue of misconduct against the background facts which are set out in the proceeding section of this judgment.

The Panel’s findings in relation to misconduct are to be found in the following passage of the decision letter:

“The panel bore in mind the definition of misconduct put forward in the case of Roylance v General Medical Council (No 2) [2001] 1 A.C. 311, where misconduct was defined as:

…..a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by [medical] practitioner in he particular circumstances

The panel had regard to the code of professional conduct applicable at the time. The relevant code is: The code: Standards of conduct, performance and ethics for nurses and midwives (Nursing and Midwifery Council, May 2008). The Code expressly states that nurses and midwives are accountable for their own practice. The panel is mindful of and has taken account of the guidance set out in the 2008 Code.

In the panel’s view the parts of the Code relevant to your case are:

Preamble, page 2, point 3:

The people in your care must be able to trust you with their health and well-being. To justify that trust, you must:

•

Make the care of people your first concern, treating them as individuals and respecting their dignity.

•

Work with others to protect and promote the health and well-being of those in your care, their families and carers, and the wider community

And paragraphs,

4.

You must act as an advocate for those in your care, helping them to access relevant health and social care, information and support.

5.

You must respect people’s right to confidentiality.

6.

You must ensure people are informed about how and why information is shared by those who will be providing their care.

32.

You must act without delay if you believe that you, a colleague or anyone else may be putting someone at risk.

34.

You must report your concerns in writing if problems in the environment of care are putting people at risk.

56.

You must cooperate with internal and external investigations.

61.

You must uphold the reputation of your profession at all times.

The panel has kept in mind the provisions of Rule 31(7) of the 2004 Rules, which provide that a failure to comply with any provision of the Code should not of itself be taken to establish that a registrant’s fitness to practise is impaired.

The panel considered that as a registered nurse you had a duty to cooperate with internal and external investigations as set out at paragraph 56 of the Code. Your actions in Charges 1 and 2 amount to a clear failure to do so. The panel did not agree with Mr Beeby’s submission that this paragraph related only to complaints made about you. Your failure was not isolated, indeed you indicated you received over number of months from December 2010 to May 2011 and they concerned a number of patients. The patients who attended the surgery were mainly older people with chronic illnesses requiring blood tests to monitor their condition and treatment. In her evidence, Ms Murton told the panel that Colleague A was allowed to return to practice as the Practice was unable to investigate the patients’ complaints. Using your professional judgement you had deemed Colleague A unfit to practise and you considered that patients were at risk of harm and the panel does not doubt that your concerns were genuine. The panel, however, concluded that your failure to cooperate with the local investigation had the potential to cause harm to patients.

Furthermore, you prevented another medical professional, Dr Sharples, from carrying out his duty to the patients within his practice and conducting an investigation into the patients’ complaints. As such the patients’ concerns could not be dealt with. Your failure also had the potential to jeopardise patients’ trust and confidence in the nursing profession.

The panel determined that your actions were a significant departure from the standard expected of a registered nurse and amount to misconduct which is serious.

Further, the panel finds that your actions in Charges 1 and 2 were a clear breach of the Code and this supported the panel’s conclusions that your actions amounted to misconduct.”

It is also necessary to set out in full the basis upon which the Panel reached the conclusion that the Appellant's fitness to practise was impaired.

“The panel considered the case of Ronald Jack Cohen v General Medical Council [2008] EWHC 581 (Admin) and the guidance set out in the judgement. It considered whether your misconduct is easily remediable, whether you have remedied your misconduct and whether there is a risk of repetition of your misconduct.

The panel concluded that your misconduct is capable of remedy. The panel went on to consider whether you have remedied your failings. During panel questions, you stated that you would act differently in the future and that you would take the risk of breaching the patient’s trust. The panel was not satisfied that you demonstrated that you understood the concept of confidentiality within your role as a professional registered nurse. While confidentiality is at the heart of practice as a registered nurse, ensuring patient safety must nevertheless come first. You had the responsibility to explain to your patients your duty as a registered nurse. You failed to do this at the time of the charges and the panel, in the light of all the evidence before it, is not satisfied that you deal appropriately with matters of confidentiality now and in the future.

The panel then went on to consider whether the steps you have taken to remedy your failings are sufficient to satisfy the panel that the risk of repetition of such misconduct is low. It notes that your clinical skills have not been called into question. Furthermore, the panel notes the positive and supportive references. The panel is, however, not satisfied that the risk of repetition and the subsequent harm to patients is low.

The panel considered the case of CHRE v NMC and Grant [2011[ EWHC 97. The panel has considered very carefully the guidance set out in the judgment quoting the formulation of Dame Janet Smith in the Fifth Shipman report which states:

76.

I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph 25.67 she identified the following as an appropriate test for panels considering impairment of a doctor’s fitness to practise, but in my view the test would be equally applicable to other practitioners governed by different regulatory schemes.

Do our finding of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

a.

has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b.

has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c.

has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

d.

not relevant in this case….

The panel concluded that your actions have brought the nursing profession into disrepute. The incidents which form the basis of the charges found proved and the misconduct which followed occurred despite your genuine concerns about the safety and risk of harm to the patients at the Practice. You stated in your evidence, on more that one occasion, that you “had your registration to protect”. The panel considers that this demonstrates your limited insight into the potential your actions had to undermine the trust and confidence the public has in the nursing profession.

In the panel’s view the limited insight that you have demonstrated into the consequences of your behaviour supports the proposition that you are liable in the future to act in a similar fashion.

In your evidence you demonstrated a lack of understanding of the concept of confidentiality and your role as a patient advocate. These concepts are so key to practice as a registered nurse that the panel concluded that you have a limited understanding of some fundamental tenets of the profession. The panel considers that you confused your role as patient advocate with the trust and relationship you developed with the patients at the Practice, and did not act professionally to ensure patient safety. During your evidence you questioned the necessity of the Council’s proceedings. The panel concluded that this gave some further support to its conclusion that you have limited insight into the consequences of your failures.

In the light of its findings that misconduct has been made out, the panel is satisfied that limbs (a), (b) and (c) of the test identified by Dame Janet Smith are engaged in this case. For the avoidance of doubt the panel is also satisfied that the public interest in maintaining proper standards of behaviour and the need to maintain public confidence in the profession, together with the serious nature of the misconduct identified leads the panel to conclude that your fitness to practise is currently impaired.”

As I have said the sanction imposed upon the Appellant was a conditions of practise order for six months. In the grounds of appeal this sanction was challenged as being disproportionate. However, during the course of his oral submissions Mr Beeby frankly acknowledged that if the findings in relation to misconduct and fitness to practise were justified he could not expect to persuade me that the sanction imposed was disproportionate. Accordingly, I say no more about this aspect of the case.

The 2001 Order contains no definition or description of the word misconduct. In Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) Irwin J considered the meaning to be attached to the phrase “unacceptable professional conduct” within the Osteopaths Act 1993. No authority was cited to the learned judge dealing, specifically, with that phrase in that Act but Counsel for the Appellant placed considerable reliance on authorities concerning legislation governing the medical and dental professions in which “misconduct” was one of the bases upon which the regulator could find fitness to practise impaired. Having considered those authorities the judge expressed his conclusion thus:-

“23.

In my judgment, the starting point for interpreting the Osteopaths Act 1993 must be the language of the Act itself. Although one notes that “unacceptable professional conduct” has the definition in section 20(2): “conduct which falls short of the standard required of a registered osteopath”, there is an unhelpful circularity to the definition. Indeed one might not unfairly comment that the statutory definition adds little clarity. The critical term is “conduct”. Whichever dictionary definition is consulted, the leading sense of the term “conduct” is behaviour, or the manner of conducting oneself. It seems to me that at first blush this simply does imply, at least to some degree, moral blameworthiness. Whether the finding is “misconduct” or “unacceptable professional conduct” there is in my view an implication of moral blameworthiness, and a degree of opprobrium is likely to be conveyed to the ordinary intelligent citizen. That is an observation not merely about the natural meaning of the language, but about the likely effect of the finding in such a case as this, given the obligatory reporting of a finding under the Act.”

Mr Beeby submits that I should adopt the same approach to the word misconduct in Article 22 of the 2001 Order. Essentially Mr Moloney does not dissent. He says in terms in his skeleton argument that he has no dispute with the summary of the relevant case law on the meaning of misconduct advanced by Mr Beeby. Nonetheless Mr Moloney draws my attention to the following observations of Lord Clyde in Roylance v General Medical Council (No 2) [2000] 1AC 311 which relate to the words “serious professional misconduct” which, the Respondent accepts, may be equated with “misconduct” as that word should be interpreted in relation to doctors and nurses.

“The expression “serious professional misconduct” is not defined in the legislation and it is inappropriate to attempt an exhaustive definition. It is the successor of the earlier phrase used in the Medical Act 1858 “infamous conduct in a professional respect”, but it was not suggested that any real difference of meaning is intended by the change of words. This is not an area in which an absolute precision can be looked for. The booklet which the General Medical Council have prepared on Professional Conduct and Discipline: Fitness to Practise, December 1993 indeed recognises the impossibility in changing circumstances and new eventualities of prescribing a complete catalogue of the forms of professional misconduct which may lead to disciplinary action. Counsel for the Appellant argued that there must be some certainty in the definition so that it can be known in advance what conduct will and what will not qualify as serious professional misconduct. But while many examples can be given the list cannot be regarded as exhaustive. Moreover the Professional Conduct Committee are well placed in the light of their own experience, whether lay or professional, to decide where precisely the line falls to be drawn in the circumstances of particular cases and their skill and knowledge requires to be respected. However the essential elements of the concept can be identified.

Serious professional misconduct is presented as a distinct matter from a conviction in the British Islands of a criminal offence, which is dealt with as a separate basis for direction by the Committee in section 36(1) of the Medical Act 1983. Analysis of what is essentially a single concept requires to be undertaken with caution, but it may be useful at least to recognise the elements which the respective words contribute to it. Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word “professional” which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word “serious”. It is not any professional misconduct which would qualify. The professional conduct must be serious…….”

In his decision in Spencer Irwin J sought to draw together the threads of a number of authorities. He did not refer, expressly, to Roylance but there is no reason to suppose that Irwin J was seeking to depart, in any way, from the principles formulated in Roylance. Those cases to which reference is made in Spencer either follow Roylance or proceed on the same basis.

It is against this background that I approach Mr Beeby's submission to the effect that the Panel applied the wrong test in determining whether misconduct had been proved against the Appellant. Mr Beeby acknowledges that the Panel made explicit reference to Roylance in its decision letter. He submits, however, that the passage quoted from Roylance is selective and fails to take account of the fact that Lord Clyde was at pains to point out that the professional misconduct had to be serious and that it is not “any professional misconduct” which will qualify.

I am not prepared to accept that the Panel misdirected itself upon the appropriate test. It seems to me to be very unlikely that an expert and experienced Panel did not apply the correct legal test particularly when it has made express reference to one of the leading authorities. In final submissions before the Panel the case presenter made reference to the test in Roylance and in his closing submissions in reply Mr Beeby did not suggest that this test was inappropriate. The Panel concluded:-

“…. your actions were a significant departure from the standards expected of a registered nurse and amounted to misconduct which is serious.”

In my judgment that sentence demonstrates that the Panel was fully aware of the correct approach and sought to apply it.

The issue in relation to misconduct is not whether the Panel applied the correct test in determining whether misconduct had been proved against the Appellant but rather whether the Panel was wrong to conclude that misconduct had been proved.

It is clear that the Panel attached considerable importance to its finding that the Appellant had failed to comply with the relevant Code of Practice. Paragraph 56 of the Code specified that a registrant “must cooperate with internal and external investigations.” The Panel concluded that the Appellant's failure to provide a list of names of patients who had complained constituted “a clear failure” to comply with that paragraph.

I do not agree with Mr Beeby's submission that paragraph 56 imposes an obligation to cooperate with internal and external investigations only insofar as they relate to the registrant himself. I can think of no good reason why the paragraph should be interpreted so narrowly. It seems to me to be obvious that circumstances may arise in which it would be wholly unprofessional if a registrant failed to cooperate with internal and external investigations which related to persons other than the registrant. It is clear, in my judgment, that the Appellant failed to comply with an important provision within her professional Code of Practice.

The Panel expressly acknowledged that this did not mean, necessarily, that misconduct had been proved. It went on to consider whether the breach of the Code constituted misconduct in the particular circumstances of the case.

I have set out at paragraph 24 above the reasoning process by which the Panel determined that misconduct had been proved. In my judgment it is not possible to say that the Panel was wrong in reaching the conclusion that it did. Stripped to its essentials the Appellant received two detailed letters from Dr Sharples which asked, in terms, for a list of patients who had complained. The letters explained clearly why the doctor wanted the information. The Appellant did not reply. She gave no reason why she was unwilling to provide the list. At the very least, she made it much more difficult for Dr Sharples to ascertain whether or not A was performing her work properly and professionally. I have reached the conclusion that the Panel’s decision on misconduct was well within the reasonable range of decisions which was open to it.

In Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council & Paula Grant [2011] EWHC 927 (Admin) Cox J analysed the concept of impairment of fitness to practise with care and in detail. I adopt the same approach as did the learned judge. The relevant paragraphs of her judgment are these:-

“66.

Judicial guidance as to how the issue of impairment of fitness to practise should be approached now appears in a number of authorities. The Committee in this case will refer to the decision of Silber J in R(on the application of Cohen) v General Medical Council [2008] EWHC 581 (Admin) and that of Mitting J more recently, in Nicholas-Pillai v General Medical Council [2009] EWHC 1048 (Admin).

67.In Cohen Silber J was concerned with serious professional misconduct failings by a consultant anaesthetist, on an isolated occasion, in relation to a patient undergoing major surgery. There was little dispute as to the facts, most of which appear to have been admitted.

68.Against that background the judge said as follows, in relation to impairment of fitness to practise:

[62] Any approach to the issue of whether a doctor’s fitness to practise should be regarded as ‘impaired’ must take account of the ‘need to protect the individual patient, and the collective need to maintain confidence [in the] profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence in the ‘(sic). In my view, at stage 2 when fitness to practise is being considered the task of the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the doctor’s misconduct, his or her fitness to practise has been impaired. It must not be forgotten that a finding in respect of fitness to practise determines whether sanctions can be imposed: s 35D of the Act.

[63] I must stress that the fact that the stage 2 is separate from stage 1 shows that it was not intended that every case of misconduct found at stage 1 must automatically mean that the practitioner’s fitness to practise is impaired.

[64] There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error in the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practise has not been impaired. Indeed the Rules have been drafted on the basis that once the Panel has found misconduct, it has to consider as a separate and discreet (sic) exercise whether the practitioner’s fitness to practise has been impaired. Indeed s 35D(3) of the Act states that where the Panel finds that the practitioner’s fitness to practise is not impaired, ‘they may nevertheless give him a warning regarding his future conduct or performance’.

[65] Indeed I am in respectful disagreement with the decision of the Panel which apparently concluded that it was not relevant at stage 2 to take into account the fact that the errors of the Appellant were ‘easily remediable’. I concluded that they did not consider it relevant at [that] stage because they did not mention it in their findings at stage 2 but they did mention it at stage 3. That fact was only considered as significant by the Panel at a later stage when it was dealing with sanctions. It must be highly relevant in determining if a doctor’s fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated. These are matters which the Panel should have considered at stage 2 but it apparently did not do so.”

69.

It is clear, notwithstanding the references in those passages to whether fitness to practise “has been” impaired, that the question is always whether it is impaired as at the date of the hearing, looking forward in the manner indicated by Silber J in his judgment. The question for this Committee as at 21 April 2010 was therefore “is this Registrant’s current fitness to practise impaired?”

70.

An assessment of current fitness to practise will nevertheless involve consideration of past5 misconduct and of any steps taken subsequently by the practitioner to remedy it. Silber J recognised this when referring, at paragraph 65, to the necessity to determine whether the misconduct is easily remediable, whether it has in fact been remedied and whether it is highly unlikely to be repeated.

71.

However it is essential, when deciding whether fitness to practise is impaired, not to lose sight of the fundamental considerations emphasised at the outset of this section of his judgment at paragraph 62, namely the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession.

72.

This need to have regard to the wider public interest in determining questions of impairment of fitness to practise was also referred to by Goldring J in R on the application of Harry) v General Medical Council [2006]EWHC 3050 (Admin) and by Mitting J in Nicholas-Pillai where he held that the Panel were entitled to take into account the fact that the practitioner had contested critical allegations of dishonest note-keeping, observing that:

“[19] In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanction should be imposed upon him.”

73.

Sales J also referred to the importance of the wider public interest in assessing fitness to practise in Yeong v GMC [2009] EWHC 1923 (Admin), a case involving a doctor’s sexual relationship with a patient. Pointing out that Cohen was concerned with misconduct by a doctor in the form of clinical errors and incompetence, where the question of remedial action taken by the doctor to address his areas of weakness may be highly relevant to the question whether his fitness to practise is currently impaired, Sales J considered that the facts of Yeong merited a different approach. He upheld the submission of counsel for the GMC that:

“….Where a FTPP considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession. In such a case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors or incompetence.”

74.

I agree with that analysis and would add this. In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.

75.

I regard that as an important consideration in cases involving fitness to practise proceedings before the NMC where, unlike such proceedings before the General Medical Council, there is no power under the rules to issue a warning, if the committee finds that fitness to practise is not impaired. As Ms McDonald observes, such a finding amounts to a complete acquittal, because there is no mechanism to mark cases where findings of misconduct have been made, even where that misconduct is serious and has persisted over a substantial period of time. In such circumstances the relevant panel should scrutinise the case with particular care before determining the issue of impairment.

76.

I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman referred to above. At paragraph 25.67 she identified the following as an appropriate test for panels considering impairment of a doctor’s fitness to practise, but in my view the test would be equally applicable to other practitioners governed by different regulatory schemes.

“Do our findings of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution of determination show that his/her fitness to practise is impaired in the sense that s/he:

a.

has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b.

has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c.

has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

d.

has in the past acted dishonestly and/or is liable to act dishonestly in the future.”

The value of this test, in my view, is threefold: it identifies the various types of activity which will arise for consideration in any case where fitness to practise is in issue; it requires an examination of both the past and the future, and it distils and reflects, for ease of application, the principles of interpretation which appear in the authorities. It is, as it seems to me, entirely consistent with the judicial guidance to which I have already referred, but is concisely expressed in a way which is readily accessible and readily applicable by all panels called upon to determine this question.

In its decision letter the Panel made specific reference to Cohen v General Medical Council and Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant. It is clear that the panel had well in mind the factors which those authorities demonstrate are crucial when consideration is given to whether a registrant’s fitness to practise is impaired.

The Panel found, specifically, that the Appellant's misconduct was capable of being remedied. For obvious reasons, the Appellant does not seek to impugn that finding. The Panel next considered whether, as a matter of fact, the Appellant had remedied her failings and whether the risk of repetition of misconduct was low. Mr Beeby submits that in considering these issues the Panel fell into error.

In summary, Mr Beeby's complaint is that the Panel ignored or failed to have proper regard to the Appellant's explanation as to why she had not provided a list of patients’ names and further her evidence to the effect that if similar circumstances were to be repeated she would disclose the names of patients because she had come to recognise that patients’ safety was a paramount consideration. Mr Beeby submits that there is no indication that the Panel rejected this evidence and unless it did so there was no proper foundation for its conclusion that there was a risk that the Appellant would repeat her misconduct.

I accept that the decision letter does not say, in terms, that the Appellant's evidence as to her future conduct was rejected by the Panel. That does not mean, however, that the Panel was wrong in its conclusion about impairment. Essentially the task for the Panel was to make an assessment of the whole of the Appellant's evidence and to make a judgment about the Appellant herself.

The Panel had the very significant advantage of seeing and hearing the Appellant. In its decision letter the Panel provides sufficient cogent reasoning to justify its conclusion that the Appellant’s fitness to practise was impaired. In particular, it concluded that the Appellant had limited insight into the potential harm to patients which would be caused by a repeat of her misconduct and, further, limited insight into the potential her actions had for undermining the trust and confidence of the public in the nursing profession. It expressed itself “not confident” that the Appellant truly understood the relationship and potential tension between confidentiality on the one hand and protection of patients on the other.

I acknowledge, as did Mr Moloney, that a differently constituted panel might have viewed the evidence given by the Appellant as to her future conduct in a more favourable light than did this Panel. Having reflected upon the matters with care, however, I am not prepared to conclude that the Panel was wrong when it held that the Appellant's fitness to practise was impaired. To repeat, it is clear that the Panel had well in mind all the relevant factors and, ultimately, the issue of impairment was a question for its judgment.

In reaching my conclusion I have borne in mind that the Appellant enjoyed a very high reputation within the profession – as is made clear by her testimonials – and that her clinical skills had never been called into question. I note, however, that the Panel also took full account of those matters yet felt itself compelled to reach the conclusion which it did upon impairment.

In the light of the foregoing this appeal must be dismissed. At the handing down of this judgment there need be no attendance. The parties accepted at the oral hearing that the successful party would recover costs from the losing party. If the Appellant wishes to seek my permission to appeal against this judgment she should e-mail written representations in support to my clerk by 4pm 5 April 2013. My decision upon any such application will be incorporated into the order made when this judgment is handed down. The hand down of the judgment will take place at 10.15am on 10 April 2013 at the Royal Courts of Justice.